BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20110019474 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his honorable discharge be changed to a medical discharge.

2.  He states he was told at a medical evaluation he was to be medically discharged due to back surgery in May 2005.  He states he believed he had no choice.  He "was a medical discharge–but in actuality–honorable."

3.  He provides:

* a self-authored letter
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 April 2004
* an Operative Report
* a DA Form 2173 (Statement of Medical Examination and Duty Status)
* a DA Form 2823 (Sworn Statement)
* a DD Form 689 (Individual Sick Slip)
* two Standard Forms 600 (Chronological Record of Medical Care)
* a notification of a hold on his physical examination from the Alabama Army National Guard (ALARNG) 
* a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* a letter from Chief Warrant Officer 4 (CW4) (Retired) K.W.
* a report of a magnetic resonance imaging (MRI) examination
* a report of a diskography study
* his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 25 June 2008
* an NGB Form 23A (Army National Guard (ARNG) Current Annual Statement)
* an NGB Form 23A1 (ARNG Retirement Points Statement – Supplemental Detailed Report)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 23 August 1983, the applicant enlisted in the ALARNG.  On 18 October 1983, he was honorably discharged.  On 22 August 1985, he again enlisted in the ALARNG.  Beginning on that date, he served primarily in the ALARNG, with the exception of a period of service in the U.S. Army Reserve Control Group (Reinforcement).  His record shows he was trained as a helicopter repairer.  

3.  On 7 February 2003, the Personnel Service Branch, Alabama State Military Department, Montgomery, AL, issued Orders 038-057, which ordered him to active duty in support of Operation Enduring Freedom.  

4.  On 17 April 2004, he was honorably released from active duty (REFRAD).  The DD Form 214 issued at that time shows he served in Kuwait and Iraq from 16 April 2003 through 19 March 2004 and held military occupational specialty (MOS) 67T (UH-60 Helicopter Repairer).  

5.  The complete facts and circumstances of his discharge from the ALARNG are not included in his Army Military Human Resource Record (AMHRR).  However, his record does include his NGB Form 22 for the period ending 25 June 2008.  The NGB Form 22 shows he was honorably discharged under the authority of Joint Force Headquarters Alabama Order 190-519, dated 8 July 2008, and National Guard Regulation 600-200, paragraph 8-35, for expiration term of service (ETS).  The NGB Form 22 shows he had completed 23 years of service for pay and 12 years of total service for retired pay.  
6.  He provides several documents in support of his application.

	a.  A Standard Form 600 shows he was seen by a physician on 2 January 2004 for a complaint of lower back pain that had been recurring for 2 months.  A second Standard Form 600 shows he was seen again on 16 January 2004 for a related complaint.

	b.  A DA Form 2823 shows he made the following sworn statement on 7 August 2004:

	"In May 03 while in Camp Udairi, I started experiencing lower back pains spreading to both hips.  It was sporadic [at] first.  Over the next several months it became more frequent (once a week).  After my short time in Iraq it became almost a daily occurence [sic].  I saw the doctor [at] Camp Doha who immediately put me with a physical therapist.  I saw him a few times with no change.  Upon returning stateside I have seen a chiropractor and will be seeing a neuro [sic] doctor 10 [August] 04 for an MRI.  The pain is primarily in both hips and the lowest part of my back.  I have never had back or hip pain ever."

	c.  A DA Form 2173, dated 8 August 2004, shows in:

		(1)  Item 5 (Accident Information) – no date and the location "Camp Doha, Kuwait"; 

		(2)  Section I (To be completed by attending physician or hospital patient administrator) – no entries; 

		(3)  Item 30 (Details of Accident–Remarks) – 

	"[Service member] states he began experiencing lower back pain beginning at Camp Udairi and was treated at Camp Doha, Kuwait.  He is currently seeing his private physician who has referred [him] to a neurosurgeon for evaluation.  Next visit is scheduled for 10 [August] 2004."

      (4)  Item 31 (Formal line of duty (LOD) investigation required) – an "X" in the block for "no"; and
      
      (5)  Item 32 (Injury is considered to have been incurred in LOD) – an "X" in the block for "yes."

	d.  A report of an MRI examination shows he was examined on 12 August 2004 to determine the cause of his low back pain.  The examining physician found "modic type I changes along the superior endplate of L4 rightward of midline, which can be a source of back pain" and "mild degenerative disc disease at various levels."  

	e.  A report of a diskography study, dated 7 April 2005, shows he "underwent provocational lumbar discography at L3-4, L4-5 and L5-S1 levels."  The examining physician stated the findings were "suggestive of a symptomatic annular tear at L5-S1."  

	f.  An Operative Report shows he underwent spinal surgery on 3 May 2005.  The pre- and postoperative diagnoses were "spondylosis, foraminal stenosis and degenerative disk disease, L5-S1."  

	g.  A notification of a hold on his physical examination from the ALARNG shows he underwent a physical examination on 2 April 2005.  His examination was reviewed on 14 May 2005, which resulted in the hold.  He was asked to provide a letter from his physician stating the diagnosis, treatment plan, prognosis, and any physical limitations for three conditions:  back pain, a right testicular mass, and abnormal blood lipids.  He was directed to provide the letter to the ALARNG within 90 days or his physical was to be forwarded to the Medical Evaluation Board (MEB) for non-compliance.

	h.  In a letter, dated 1 May 2006, CW4 K.W. stated he was deployed with the applicant between January 2003 and April 2004.  He stated, in part:

	"[The applicant] was an active member on our phase teams stationed at Camp Doha, Kuwait.  Over time I noticed more limitations in his mobility and flexibility as he worked on UH-60 Blackhawks.  At the beginning of our deployment, [the applicant] was active in [physical training (PT)] on a daily basis and in good physical shape.  Toward the end of our deployment, he was on restrictions from all PT and any lifting.  Also before returning to the United States, I noted a significant and prominent limp in his walk."

	i.  A VA Form 21-4138, signed by the applicant on 9 May 2006, shows he stated:

	"To date 9 May 06 I still have burning sensation in both hips, right [and] left leg and [right] knee.  Although it is not as bad [as] before the surgery.  Standing for more than 30 [minutes] without resting brings on the burning sensations as well as tightness in the lower back.  Walking for any extended periods of time also results in the same.  Bending from the waist, lying down in bed or on a couch takes additional effort to get up.  I cannot raise my back or buttocks up to turn over.  Sitting/driving are difficult for extended periods of time."

7.  In his self-authored letter, he states, in part, during his deployment that began in February 2003 he began experiencing back pain.  He was treated by a military physician for recurring back pain and pulled muscles.  When he returned home, his physician found his "L5 and S1 vertebrae had collapsed due to the disc deterioration."  He had surgery to fuse the vertebrae.  At an evaluation conducted at a National Guard installation in Birmingham, AL, he was told he would be given a medical discharge as he would not be given a waiver to remain in service.  The VA has given him a 50 percent disability rating.  He states, in effect, he was unaware of the differences in the authorities for discharge.  He asks the Board to reclassify his discharge as a medical discharge based on the false and incomplete information given to him.  

8.  On 24 August 2012, during the processing of this case, the Chief, Personnel Policy Division, NGB, provided an advisory opinion.  The advisory official recommends partial approval of the applicant's request based on the following analysis and regulatory provisions.  

	a.  The evidence shows the applicant's chain of command failed to complete and/or submit an LOD investigation and ensure the applicant was properly referred to the Physical Disability Evaluation System (PDES) under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and Department of Defense (DOD) Directive 1332.18.  

	b.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3, states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a Physical Evaluation Board (PEB).  

	c.  Army Regulation 635-40, paragraph 2-8, states a medical treatment facility commander will provide a thorough and prompt evaluation when a Soldier's medical condition becomes questionable in respect to physical ability to perform duty; appoint a PEB Liaison Officer to counsel Soldiers undergoing physical disability processing; and ensure MEB proceedings referred to the PEB are complete, accurate, and fully documented.  

9.  The advisory official states the Surgeon General, NGB, in an e-mail dated 5 April 2012, indicated more information was needed.  The Surgeon General, NGB, stated it appeared an LOD investigation had been initiated but had not been completed, and further indicated that, unless there was a viable reason for the applicant's administrative discharge, an MEB should have been conducted.  The ALARNG confirmed an MEB had not been conducted, and they did not have medical documentation relating to this case.

10.  The advisory official states, based on guidance provided by the Surgeon General, NGB, the ALARNG should:

* implement an informal LOD investigation
* complete a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) in consultation with the NGB-LOD section
* appoint an investigating officer
* enter the case into the LOD module (manually if necessary)
* submit a request to the NGB-LOD section for approval
* if approved, request the applicant's records be sent before a "Mandatory Medical Review Board," an MEB, and then be referred to a PEB to determine his fitness

11.  The advisory official recommends that if a determination cannot be made by the MEB or PEB based on the medical documentation provided by the applicant, the Office of the Surgeon General should contact the applicant to schedule an evaluation, generate travel orders, and reinstate him.  If a determination is made that the applicant should have been separated under the PDES, the advisory official recommends these Proceedings serve as the authority to:
      
* void the applicant's administrative discharge
* issue him the appropriate disability separation retroactive to his original ARNG separation date
* pay him all back pay and allowances less any entitlements already received

12.  The advisory official notes the State concurs with the recommended relief.

13.  The applicant was provided a copy of the advisory opinion for his comment and/or rebuttal.  He did not respond in the time allotted.  

14.  National Guard Regulation 600-200 (Enlisted Personnel Management) states commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501.  Commanders who do not recommend retention will request the Soldier's discharge.  When a medical condition was incurred in LOD, the procedures of Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations) will apply.  Discharge will not be ordered while the case is pending final disposition.  

15.  National Guard Regulation 600-200, paragraph 6-35 (formerly paragraph 
8-35), lists the reasons for discharge from the ARNG.  It states to refer to Army Regulation 135-178 (ARNG and Army Reserve - Enlisted Administrative Separations), chapter 4, for discharge for ETS.  

16.  Department of the Army Personnel Policy Guidance, paragraph 6-7, provides that, to ensure all Soldiers receive appropriate medical care after leaving active duty, commanders must ensure an LOD investigation is initiated.  An LOD should be completed at the demobilization station, but may be completed after the Soldier has left active duty.

17.  Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNG and U.S. Army Reserve enlisted Soldiers for a variety of reasons.

	a. Paragraph 2-15 states a Soldier is entitled to be discharged on the expiration of his or her service obligation and normally will be discharged unless action is taken to retain the Soldier beyond such expiration date.  Retention beyond the expiration date of a service obligation may be either voluntary or involuntary.  Soldiers may voluntarily remain beyond the expiration date of a service obligation if they are undergoing required health care or are being processed for physical disability separation.

	b.  Chapter 4 (Expiration of Service Obligation) states a Soldier will be discharged from the Army upon expiration of the later of the term of contractual service or the statutory military service obligation.  It states a Soldier may not be held in the Army beyond the normal expiration of service obligation unless the service obligation is extended by law or the provisions of paragraph 2-15 apply.

	c.  Paragraph 15-1k(2) states a Soldier who does not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training will be processed as specified in Army Regulation 635-40 if otherwise qualified.

18.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

19.  Army Regulation 635-40, chapter 4, contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

20.  Army Regulation 40-501 governs medical fitness standards for retention and separation, including retirement.  Chapter 10 provides the basic policies, standards, and procedures for medical examinations and physical standards for the ARNG.  Paragraph 10-25 states, in part, Soldiers pending separation for injuries or illnesses incurred in the LOD will be processed in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation 635-40.

21.  Army Regulation 600-8-4 states LOD investigations are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of the case, an LOD investigation may or may not be required to make this determination.  Investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated.  Documentation for an informal LD investigation typically consists of a DA Form 2173 completed by the medical treatment facility and the unit commander and approved by the appointing authority, State adjutant general, or higher authority.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record indicates the applicant may not have met medical fitness standards for retention in the ARNG due to a condition incurred while he was on active duty.  The available records clearly show he developed and sought treatment for lower back pain while he was on active duty.  He provides a partially-completed DA Form 2173 indicating his condition was found to have been incurred in the LOD, but the available records do not show the LOD finding was approved by a proper authority.  

2.  He continued to seek treatment after his release from active duty, and his treatment culminated in spinal surgery in 2005.  It seems likely he would no longer have been fit to perform his duties after his spinal surgery, as indicated by the hold placed on his physical examination in 2005.  It is unclear why the ALARNG did not take action at that time.  More than 3 years later, he was discharged by reason of ETS, in spite of documentation indicating his condition warranted entering him into the PDES.  As a matter of equity, it would be appropriate to process his case through the PDES at this time to determine his fitness for continued service.

3.  It would be premature to change the reason and authority for his discharge without the benefit of a properly completed LOD investigation and review by an MEB/PEB.  If warranted based on MEB/PEB findings, the proper authority will direct such action be taken.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x_____  ___x_____  __x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by directing that:

	a.  The proper authorities complete an LOD investigation. 

	b.  An MEB review the applicant's medical records and, if appropriate, refer him to a PEB.  

	c.  If a determination of fitness cannot be made by the MEB/PEB based on his medical records, the Office of the Surgeon General will contact the applicant, schedule an evaluation, and generate invitational travel orders.
	d.  If a determination is made that he should have been separated through the PDES, these Proceedings serve as the authority to:
      
* void his administrative discharge
* issue the appropriate disability separation 
* pay him all back pay and allowances less any entitlements already received

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his honorable discharge to a medical discharge at this time.  



      _______ _x   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20110019474





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ABCMR Record of Proceedings (cont)                                         AR20110019474



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